Chippewas of the Thames First Nation v. Enbridge Pipelines Inc.

Chippewas of the Thames First Nation v. Enbridge Pipelines Inc.
Court (s) Database
Federal Court of Appeal Decisions
Date
2015-10-20
Neutral citation
2015 FCA 222
File numbers
A-358-14
Notes
A correction was made on May 18, 2016
Reported Decision
Decision Content
Date: 20151020
Docket: A-358-14
Citation: 2015 FCA 222
CORAM:
RYER J.A.
WEBB J.A.
RENNIE J.A.
BETWEEN:
CHIPPEWAS OF THE THAMES FIRST NATION
Appellant
and
ENBRIDGE PIPELINES INC.
THE NATIONAL ENERGY BOARD
ATTORNEY GENERAL OF CANADA
Respondents
Heard at Toronto, Ontario, on June 16, 2015.
Judgment delivered at Ottawa, Ontario, on October 20, 2015.
REASONS FOR JUDGMENT BY:
RYER J.A.
CONCURRED IN BY:
WEBB J.A.
DISSENTING REASONS BY:
RENNIE J.A.
Date: 20151020
Docket: A-358-14
Citation: 2015 FCA 222
CORAM:
RYER J.A.
WEBB J.A.
RENNIE J.A.
BETWEEN:
CHIPPEWAS OF THE THAMES FIRST NATION
Appellant
and
ENBRIDGE PIPELINES INC.
THE NATIONAL ENERGY BOARD
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT
RYER J.A.
[1] This is an appeal by the Chippewas of the Thames First Nation (the “Appellant”) from a decision of the National Energy Board (the “Board”) approving an application by Enbridge Pipelines Inc. (“Enbridge”) for the Line 9B Reversal and Line 9 Capacity Expansion Project (the “Project”). The reasons for the Board’s decision were issued on March 6, 2014 and may be cited as OH-002-2013.
[2] The Appellant asks the Court to quash the Board’s approval of the Project “… because the Board was without jurisdiction to issue exemptions and authorizations to [Enbridge] prior to the Crown fulfilling its duty to consult and accommodate the Appellant”.
[3] For the reasons that follow, I would dismiss the appeal.
I. RELEVANT STATUTORY PROVISIONS [4] The statutory provisions that are relevant to this appeal are subsections 21(1), 22(1), 52 and 58 of the National Energy Board Act, R.S.C., 1985, c. N-7 (the “NEB Act”) and subsection 35(1) of the Constitution Act, R.S.C. 1985, App. II, No. 44, Schedule B (the “Constitution Act”).
II. BACKGROUND [5] In 1976, Line 9 began transporting oil eastward from Sarnia, Ontario to Montreal, Quebec. In 1999, the Board approved a reversal of the flow of oil. In July of 2012, the Board approved the re-reversal of the flow of oil in a segment of Line 9 from a location near Sarnia to a location near Hamilton, Ontario (“North Westover”).
[6] The application with respect to the Project was made pursuant to section 58 of the NEB Act. In the application, Enbridge requested approval for:
a) a reversal of the direction of the flow of oil between North Westover and Montreal;
b) an increase in Line 9’s capacity from 240,000 barrels per day to 300,000 barrels per day; and
c) the transportation of heavy oil.
[7] The application stipulated that almost all of the work to implement the Project would take place within the existing pipeline right of way or upon property belonging to Enbridge.
[8] The Board determined that a public hearing in respect of the Project would be held and issued a Hearing Order to that effect. The Hearing Order was served upon the representatives of the federal Crown (the “Crown”) and the Crown in right of each of Ontario and Quebec. The Appellant was granted intervener status and received funding from Enbridge in respect of its participation in the hearing.
[9] Enbridge engaged in discussions with the Appellant and other Aboriginal groups that were within 50 kilometres of Line 9. The Appellant acknowledged the consultation efforts by Enbridge but submitted that these efforts did not meaningfully address their concerns.
[10] On September 27, 2013, the Appellant and another First Nation sent a letter (the “Request for Consultation Letter”) to several ministers of the Crown, including the Minister of Natural Resources. The signatories noted their concerns with respect to the effect of the Project upon their Aboriginal and treaty rights and requested that the Crown immediately initiate a consultation process. They also requested that the Crown inform the Board that no consultation had taken place, and as a result, procedural steps involving the Crown and the Appellant would need to be taken.
[11] The signatories stipulated that Crown consultation was required because the NEB Act does not provide the Board with the power to engage in Haida duty consultations on behalf of the Crown and to do so would be “wholly inappropriate” given the Board’s role as “an independent, quasi-judicial body”. In addition, the signatories stipulated that the Board does not have the jurisdiction to:
• protect other parts of our land bases to ensure that there continue to be areas in our traditional territories where we are able to exercise our rights;
• address cumulative impacts caused by changes to other Enbridge pipelines (such as Lines 5 and 6B) and facilities (Sarnia Tank Terminal) that are required to enable Enbridge to ship 300,000 bpd of crude oil on Line 9;
• address cumulate impacts caused by changing the type of crude oil that will be used as feedstock by petrochemical and chemical refineries in Sarnia;
• provide AFN and COTTFN with economic accommodation for potential impacts to our rights;
• conduct the public hearing and make a decision under s. 58 in a way which ensures that, if the Project is approved, accommodation provided to AFN and COTTFN is commensurate with potential adverse impacts on our respective rights and interests; and
• address historic and ongoing infringement of our rights caused by the construction and operation of Line 9.
[12] No reply to the Request for Consultation Letter was made by the Crown prior to the conclusion of the hearing before the Board.
[13] The hearing process began on October 8, 2013 in Montreal and ended on October 18, 2013, in Toronto, Ontario. The Crown did not participate in the hearing.
[14] At the hearing, the Appellant described its treaty and Aboriginal rights through written evidence, including a preliminary Traditional Land Use study outlining the use of land adjacent to the Line 9 right of way, and oral representations. The evidence contained expressions of the Appellant’s deep spiritual connection to its traditional land and resources and its concerns with respect to potential threats to its treaty and Aboriginal rights that could arise from the approval of the Project. In addition, the Appellant’s Chief’s affidavit stated that the Appellant was entitled to share in the revenues that were being generated by the transportation of oil through Line 9.
[15] During final argument at the hearing, the Appellant asserted that the Board was required to decline to grant the Project approvals requested by Enbridge until Crown consultation had occurred.
[16] By letter dated January 30, 2014 (the “Crown Response Letter”), the Minister of Natural Resources replied to the Request for Consultation Letter. The Minister stated that:
a) the Crown was committed to meeting its legal duty to consult whenever it contemplates conduct that could adversely affect an established or potential Aboriginal or treaty right;
b) in support of that commitment, the Government had introduced a Responsible Resources Plan, which in part addressed Aboriginal consultation issues in respect of major projects; and
c) the Government relies on Board processes to address potential impacts to Aboriginal and treaty rights stemming from projects under the Board’s mandate.
III. THE BOARD’S DECISION [17] The Board acknowledged the potential threat that the Project could pose to the Appellant’s Traditional Land Use but was satisfied by Enbridge’s representations as to the safe operation of Line 9 and contingency operations in case of a pipeline rupture. As a result, the Board stated that any impacts on the Appellant’s rights would be minimal and appropriately mitigated. The Board concluded that its approval of the Project was in the public interest and consistent with the requirements of Parts III and IV of the NEB Act. Nonetheless, the Board’s approval was subject to a number of conditions that, according to the Board, would “… enhance [the] current and ongoing pipeline integrity, safety and environmental protection measures to which Line 9 is already subject.”
[18] The Appellant was granted leave to appeal the Board’s decision, as required under subsection 22(1) of the NEB Act, on June 4, 2014.
IV. ISSUES [19] The underlying issues in this appeal relate to the duty (if any) of the Crown, as enunciated by the Supreme Court of Canada in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 [Haida Nation], to consult with and accommodate the concerns of the Appellant relating to potential effects of the Project on their Aboriginal and treaty rights (the “Haida duty”).
[20] More particularly, there are two issues:
a) Whether the Board itself has been delegated the power to undertake the fulfilment of the Haida duty on behalf of the Crown in relation to the Project; and
b) Whether the Board was required to determine, as a condition of undertaking its mandate with respect to Enbridge’s application for approval of the Project, if the Crown, which was not a party to the application, was under a Haida duty and, if so, whether the Crown had discharged that duty.
I will deal first with the latter of the two issues.
V. ANALYSIS A. Was the Board required to determine, as a condition of undertaking its mandate with respect to Enbridge’s application for approval of the Project, if the Crown, which was not a party to the application, was under a Haida duty and, if so, whether the Crown had discharged that duty? Standard of Review [21] The issue of whether the Board was required to determine, as a condition of undertaking its mandate with respect to Enbridge’s application for approval of the Project, if the Crown, which was not a party to the application, was under a Haida duty and, if so, whether it had discharged that duty, is a question of law that is reviewable on the standard of correctness (Standing Buffalo Dakota First Nation v. Enbridge Pipelines Inc., 2009 FCA 308 at paragraphs 23-24, [2010] 4 F.C.R. 500 [Standing Buffalo]; Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 at paragraphs 64-67, [2010] 2 S.C.R. 650 [Carrier Sekani]).
Standing Buffalo Governs [22] In paragraph 2 of Standing Buffalo, the Court stated:
[2] The appellants raise the novel question of whether, before making its decisions in relation to those applications, the NEB was required to determine whether by virtue of the decision in Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73, the Crown, which was not a party to those applications or a participant in the hearings, was under a duty to consult the appellants with respect to potential adverse impacts of the proposed projects on the appellants and if it was, whether that duty had been adequately discharged.
[23] The Court answered this question in the negative and held that the Board was not precluded from exercising its jurisdiction to hear the applications that were before it. The Court did not decide that the Board lacked the power to determine whether the Crown was under a Haida duty and, if so, whether it met that duty (the “Haida Determinations”). Leave to appeal to the Supreme Court in Standing Buffalo was denied (33480 (December 2, 2010)).
[24] Subsequent to Standing Buffalo, there have been no amendments to the NEB Act that negate the continuing applicability of that decision.
Carrier Sekani [25] In late October of 2010, the Supreme Court of Canada released its decision in Carrier Sekani. In that case, the Crown in right of British Columbia (the “BC Crown”), acting through the British Columbia Hydro and Power Authority (“BC Hydro”) sought approval from the British Columbia Utilities Commission (“BCUC”), under the Utilities Commission Act, R.S.B.C. 1996, c. 473, to purchase electrical power under a contract with Rio Tinto Alcan Inc. (“RTA”).
[26] BCUC allowed BC Hydro’s application. It determined that the Haida duty had not been triggered because the First Nation failed to establish that the proposed power purchase contract would adversely affect any asserted Aboriginal rights. As such, a complete consideration of the adequacy of consultations was not required.
[27] On appeal, the British Columbia Court of Appeal (the “BCCA”) found that a more fulsome inquiry with respect to the Haida Determinations was required and remitted the matter to BCUC on that basis.
[28] Before the Supreme Court of Canada, BC Hydro and RTA argued that the BCCA took too wide a view of BCUC’s role in deciding consultation issues and that BCUC had correctly concluded that the Haida duty had not been triggered. For its part, the Carrier Sekani Tribal Council supported the BCCA’s decision to remit the consultation issue back to BCUC for more fulsome submissions on the consultation issue.
[29] In allowing the appeal, the Supreme Court determined that BCUC was correct in finding that it had the power to make the Haida Determinations and that its conclusion, that the Haida duty had not been triggered, was reasonable. In doing so, the Supreme Court stated that the role of each particular tribunal in relation to the Haida Determinations depends on the duties and powers that the legislature has conferred upon it.
[30] Specifically, the Supreme Court stated, at paragraph 69, as follows:
[69] It is common ground that the Utilities Commission Act empowers the Commission to decide questions of law in the course of determining whether the 2007 EPA is in the public interest. The power to decide questions of law implies a power to decide constitutional issues that are properly before it, absent a clear demonstration that the legislature intended to exclude such jurisdiction from the tribunal’s power (Conway, at para. 81; Paul v. British Columbia (Forest Appeals Commission), 2003 SCC 55, [2003] 2 S.C.R. 585, at para. 39). “[S]pecialized tribunals with both the expertise and authority to decide questions of law are in the best position to hear and decide constitutional questions related to their statutory mandates”: Conway, at para. 6. [Emphasis added]
[31] In addition, at paragraph 70, the Supreme Court referred to paragraph 71(2)(e) of the Utilities Commission Act that required BCUC to consider “any other factor that [it] considers relevant to the public interest”. Thus, the Supreme Court concluded that BCUC was empowered by the Utilities Commission Act to make the Haida Determinations in respect of the BC Hydro’s application for approval of the power purchase contract.
[32] The Supreme Court also found that a tribunal having the power to make the Haida Determinations may nonetheless lack effective remedial powers. At paragraphs 61 and 63, the Supreme Court stated:
[61] A tribunal that has the power to consider the adequacy of consultation, but does not itself have the power to enter consultations, should provide whatever relief it considers appropriate in the circumstances, in accordance with the remedial powers expressly or impliedly conferred upon it by statute. The goal is to protect Aboriginal rights and interests and to promote the reconciliation of interests called for in Haida Nation.
[…]
[63] As the B.C. Court of Appeal rightly found, the duty to consult with Aboriginal groups, triggered when government decisions have the potential to adversely affect Aboriginal interests, is a constitutional duty invoking the honour of the Crown. It must be met. If the tribunal structure set up by the legislature is incapable of dealing with a decision’s potential adverse impacts on Aboriginal interests, then the Aboriginal peoples affected must seek appropriate remedies in the courts: Haida Nation, at paragraph 51.
[33] The decision in Carrier Sekani does not refer to the decision in Standing Buffalo and contains no analysis of the role of a tribunal in relation to Haida Determinations when the Crown is not a participant in the proceeding before that tribunal. In Carrier Sekani, the Crown was before BCUC, and BCUC made the initial Haida Determination, namely that the Crown was not under a Haida duty in the circumstances. In my view, Carrier Sekani does not go so far as to establish that before undertaking its consideration of the matter at issue in the proceedings before it, a tribunal must make the Haida Determinations irrespective of whether the Crown is a participant in those proceedings.
Does Carrier Sekani Overrule Standing Buffalo? [34] The Appellant submitted that Standing Buffalo has been overtaken by Carrier Sekani. I am not persuaded that this is the case.
[35] The circumstances in Carrier Sekani differed significantly from those in Standing Buffalo.
[36] In Carrier Sekani, the BC Crown, in the form of BC Hydro, was a party to an application to BCUC, seeking approval to enter into a power purchase agreement with RTA. Thus, there was a specific Crown action – entering into and performing the electricity purchase contract – that was subject to the approval of BCUC and that same action was alleged by the First Nation to constitute Crown conduct that engaged BC Hydro’s duty to consult. In those circumstances, the question of whether the BC Crown was under, and, if so, had discharged, a Haida duty was squarely before BCUC. Indeed, BCUC itself was of the view that it was empowered to make the requisite legal and factual determinations. If BC Hydro had a Haida duty and it was not discharged, then BCUC had the ability to prevent BC Hydro from taking the action that allegedly had an adverse impact upon an asserted interest of the First Nation.
[37] In Standing Buffalo, the Standing Buffalo First Nation (“SBFN”) had been engaged in a consultation process with the federal Crown with respect to asserted claims of Aboriginal title to lands and other matters for a period of time extending from 1997 to 2006. The Crown ultimately determined that it had no Haida duty and that it was no longer prepared to continue the consultations. That prompted SBFN to intervene in the hearing before the Board with respect to Enbridge’s application, pursuant to section 52 of the NEB Act, for permission to construct the Saskatchewan leg of the Keystone Pipeline. SBFN requested the Board to compel the Crown to participate in the hearing so that the Board could determine whether the Crown had met any applicable Haida duty. If the Crown did not participate, SBFN asserted that its evidence should be accepted by the Board and, as a result, the Board should determine that it was without jurisdiction to consider the substantive merits of Enbridge’s application before it.
[38] In Carrier Sekani, the party seeking an approval from BCUC was the Crown itself. In contrast, the Crown did not participate in the approval proceedings before the Board in Standing Buffalo. Instead, the party seeking approval from the Board was Enbridge, a private-sector corporation that was unrelated to the Crown.
[39] The non-participation of the Crown in the hearing process in Standing Buffalo is significant.
[40] While it is clear that the Board has the power to decide questions of law, it is important to note that the Haida Determinations also include factual findings. As stated by the Supreme Court in Haida Nation, at paragraph 61:
[61] …The existence or extent of the duty to consult or accommodate is a legal question in the sense that it defines a legal duty. However, it is typically premised on an assessment of the facts. …
Similarly the question of whether an existing Haida duty has been met is largely factual.
[41] Because the Crown participated in the proceedings in Carrier Sekani, BCUC was in a position to make the factual findings required by the Haida Determinations in the normal adversarial context. If the Board had decided to make the Haida Determinations in Standing Buffalo, it would have had to make the requisite factual findings outside of that adversarial context.
[42] Moreover, it is noteworthy that the implied power of a tribunal to undertake the Haida Determinations, which is stipulated in paragraph 69 of Carrier Sekani, refers to “constitutional issues that are properly before” the tribunal. Because the Crown was not a party to the Project approval proceedings, it is not clear that the Haida Determinations were “properly before” the Board in these proceedings.
[43] The contrast between Carrier Sekani and Standing Buffalo is also marked in terms of the remedial capacity of the respective tribunals in those cases.
[44] In Carrier Sekani, BCUC was in a position to deny the approval requested by BC Hydro if it determined that BC Hydro had a Haida duty but had not fulfilled it.
[45] In Standing Buffalo, the Board had no remedial power over the Crown. It was unable to deny a request from the Crown because the Crown had not requested anything from it. If the Board had decided to make the Haida Determinations (in the absence of evidence or argument from the Crown) and had concluded that the Crown has not fulfilled an applicable Haida duty, the Board’s only recourse – as asserted by SBFN – would have been to decline to adjudicate upon Enbridge’s pipeline construction application. Thus, the Board’s remedy would have been to effectively deny Enbridge’s approval request because of a failure on the part of the Crown.
[46] As stipulated by the Supreme Court in paragraph 61 of Carrier Sekani (reproduced above), a tribunal’s remedial powers, which are directed towards the promotion of the reconciliation of interests, are limited to those conferred upon it by statute. Holding the pipeline approval application under consideration in Standing Buffalo in abeyance as some sort of leverage over the Crown, so as to force it to become a participant in the hearing before the Board, would not, in my view, have been an appropriate way to promote the reconciliation of interests called for in Haida Nation.
[47] As is apparent from paragraph 63 of Carrier Sekani (reproduced above), the Supreme Court acknowledged that tribunals may lack practical and effective remedial powers to deal with failures on the part of the Crown to comply with applicable Haida duties. In such circumstances, the Supreme Court states that the appropriate remedies must be sought in the courts.
[48] This Court’s decision in Standing Buffalo validated the fulfillment of the Board’s regulatory mandate with respect to Enbridge’s application for pipeline construction approval. However, that decision did not leave SBFN without any ability to have the Crown’s Haida duty adjudicated. In that case, SBFN could have sought judicial review of the Crown’s decision to terminate the consultations with SBFN in 2006.
[49] In conclusion, it is my view that Carrier Sekani has not overruled Standing Buffalo because the Supreme Court did not address the issue of whether a tribunal is obligated to make the Haida Determinations in a proceeding before it in which the Crown does not participate as a party. Accordingly, in my view, the principle established in Standing Buffalo continues to apply.
Is Standing Buffalo Distinguishable? [50] The circumstances in Standing Buffalo are substantially the same as those in this appeal. In both instances, the Board was asked by Enbridge, a private-sector corporation, for an approval in respect of a pipeline project. In both instances, the Crown had no direct involvement with the proposed activities. In both instances, the First Nation stipulated that the Crown was under, but had not fulfilled, a Haida duty. In both instances, the First Nation asked the Board to hold the application before it in abeyance unless and until the Board was satisfied that the Crown’s asserted Haida duty has been met.
[51] Notwithstanding these similarities, the Appellant argues that Standing Buffalo is distinguishable on the basis that the application before the Board in that case was brought under section 52 of the NEB Act while the application in respect of the Project was brought under section 58 of the NEB Act.
[52] The Appellant asserts that because a section 52 approval is subject to a review and final approval by the Governor-in-Council, it is unnecessary for the Board to undertake the Haida Determinations where the Crown does not participate in the section 52 proceeding. This is apparently so because the Governor-in-Council is in a position to overrule or suspend the section 52 approval decision, should it decide to engage in a Haida duty consultation process. This assertion is unpersuasive.
[53] First, this alleged rationale for the decision in Standing Buffalo appears nowhere in the reasons in that case. Secondly, the Crown that allegedly has not yet engaged in Haida duty consultations could well be the Crown in right of a province. In Standing Buffalo, Saskatchewan intervened and argued that the Board lacked jurisdiction to undertake a Haida duty analysis in respect of the Crown in right of Saskatchewan (see also Fond du Lac Denesuline First Nation v. Canada (Attorney General), 2010 FC 948 at paragraphs 230-231, 377 F.T.R. 50; aff’d on narrower grounds 2012 FCA 73).
[54] Thirdly, a review of the NEB Act, including sections 52 and 58 of the NEB Act, reveals nothing that addresses the question of whether the Board has the power to make Haida Determinations. If that power exists it must be implicit in the Board’s ability to decide questions of law. Equally, nothing in the NEB Act directs or requires the Board to exercise such an implicit power in respect of an application under either sections 52 or 58 of the NEB Act where the Crown is not a party to such an application. Indeed, subsection 52(2) of the NEB Act stipulates that the Board shall have regard to all considerations that appear to it to be directly related to the pipeline and gives the Board a further discretion to consider the factors that are listed in paragraphs 52(2) (a) to (e) of the NEB Act. And, as this Court determined in Forest Ethics Advocacy Association v. Canada (National Energy Board), 2014 FCA 245, 465 N.R. 152, at paragraph 69, in considering the section 58 application in respect of the Project, the Board must consider issues similar to those stipulated in subsection 52(2) of the NEB Act and that in doing so, the Board is empowered to determine the issues that it will consider. In that case, the Court upheld the Board’s determination that it was not required to consider affects associated with so-called “upstream” and “downstream” activities that were alleged to have been related to the Project.
[55] Fourthly, it is the case that a section 52 approval will be subject to a further order by the Governor-in-Council but a section 58 order will not. However, the apparent finality of a section 58 approval proceeding does nothing to assist the Board in making the Haida Determination when the Crown is not a participant in that proceeding. Such finality does not, in and of itself, establish that the constitutional issues embedded in the Haida Determinations are “properly before” (see Carrier Sekani at paragraph 69) the Board when the Crown itself is not a participant before the Board. Moreover, I find it difficult to understand how Parliament’s intention, when it enacted section 58 of the NEB Act to allow the Board to make final decisions in respect of matters falling under that section, should be construed in light of the Crown’s Haida duties when the date of enactment of that provision predates both the enactment of the Constitution Act and the enunciation of the Crown’s Haida duties in Haida Nation by over 45 years.
[56] In my view, the essential factual context in Standing Buffalo is indistinguishable from the factual context in this appeal. For that reason, it is my view that the principle established in Standing Buffalo ought to be followed in this appeal. In that regard, I note that nowhere in any of the memoranda of law before this Court is there an argument that this Court should disavow its decision in Standing Buffalo, in accordance with the principles established in Miller v. Canada (Attorney General), 2002 FCA 370, 220 D.L.R. (4th) 149 (see also ViiV Healthcare ULC v. Teva Canada Ltd., 2015 FCA 93 at paragraph 18, [2015] F.C.J. no. 455 (QL)).
The non-participation of the Crown [57] The Crown decided not to participate in the Project approval proceedings before the Board and no comprehensive explanation was put forward for that decision. It is possible that the Crown was of the view that Enbridge’s application entailed no Crown conduct that could engage the Haida duty. If the Crown had appeared before the Board, this and other issues could have been argued. But that did not occur.
[58] In the final analysis, the Board determined that it would entertain Enbridge’s section 58 application without making the Haida Determinations. In doing so, in my view, it made no reviewable error.
Conclusion [59] For the foregoing reasons, I conclude that the Board, in the absence of the Crown as a participant in the section 58 application in respect of the Project, was not required, as a precondition to its consideration of that application, to determine whether the Crown was under a Haida duty, and if so, had discharged that duty, in respect of the Project.
B. Was the Board under a Haida Duty? Standard of Review [60] The issue of whether the Board has the power to undertake and discharge a Haida duty on behalf of the Crown in respect of the Project is a question of law that is reviewable on the standard of correctness (Carrier Sekani at paragraph 67).
The Board’s Constitutional Duty [61] It is clear that the Board is obligated to carry out its mandate in a manner that respects the provisions of subsection 35(1) of the Constitution Act.
[62] The Board’s mandate includes ensuring that the interests of Aboriginal groups in relation to the Project approval application are considered by it and by the Project proponent. In this regard, the Board required Enbridge to engage in extensive dialogue with the Appellant and other First Nations. In doing so, the Board ensured that it adhered to its constitutional obligations under subsection 35(1).
[63] It is important to note that the Board’s duty to ensure appropriate levels of consultation with Aboriginal groups is not the same as the Crown’s Haida duty. That said, as a practical matter, consultations with Aboriginal groups that arise in the Board’s section 58 application process may very well deal with, and hopefully remediate if necessary, the same Aboriginal concerns that arise when the Crown engages in Haida duty consultations. In other words, it should not matter whether a problem is solved in the Board’s consultation process or the Crown’s Haida duty consultation process.
Did the Crown delegate its Haida duty to the Board? [64] As informed by the Supreme Court in Haida Nation, and more recently in Carrier Sekani, the Crown’s Haida duty can be delegated to a tribunal by appropriate legislation.
[65] None of the parties to this appeal argued that the NEB Act contained any provisions that gave rise to a delegation of the Crown’s Haida duty to the Board, and I have been unable to discern any provision of that legislation that can be interpreted to produce such a delegation.
[66] While it is within the power of Parliament to require the Board to discharge the Crown’s Haida duty, mandating the Board to perform such additional duties would require it to function outside its core areas of technical expertise. Moreover, it seems to me that requiring the Board to consult with First Nations on behalf of the Crown would make it very difficult, if not impossible, for the Board to then adjudicate – in its capacity as a quasi-judicial tribunal and a court of record – upon the issue of the adequacy of those consultations. Perhaps these observations explain why Parliament has not taken legislative steps to expand the jurisdiction of the Board by adding such additional duties.
The Crown Response Letter [67] In the present circumstances, the Crown did not participate as a party to the application for Project approval. However, in the Crown Response Letter, the Minister of Natural Resources stated as follows:
In your letter, you reference the importance of Crown consultation with Aboriginal groups under section 35 of the Constitution Act, 1982. I can assure you that the Government of Canada is committed to meeting its legal duty to consult whenever it contemplates conduct that could adversely affect an established or potential Aboriginal or treaty right. Where a duty to consult exists, the federal Crown will meet its consultation obligations in an effective and meaningful manner.
Later in that letter, the Minister stated that:
The National Energy Board’s (NEB) regulatory review process is where the Government’s jurisdiction on a pipeline project is addressed. The Government relies on the NEB processes to address potential impacts to Aboriginal and treaty rights stemming from projects under its mandate. The NEB provides an open, comprehensive and participatory venue for all affected parties to express their project-related concerns and interests.
[68] I do not accept that this latter passage constitutes an effective delegation to the Board of the Crown’s responsibility for the performance of any portion of its Haida duty, if such a duty arose in relation to the Project. Carrier Sekani informs that the question of whether a tribunal has been given the power to carry out the Crown’s Haida duties is to be determined from a review of the legislation that creates the tribunal. This implies that an effective delegation by the Crown of its Haida duties requires legislation to that effect. I leave open the question of whether some formal type of disposition other than legislation could be employed by the Crown to produce an effective delegation of its Haida duties. Suffice it to say that, in my view, the Crown Response Letter is insufficient to produce such a delegation, especially so when it is recalled that this letter was not sent until after the hearing before the Board ended.
[69] In my view, the existence of the Crown’s Haida duty, if any, and the fulfillment of that duty, should it be found to exist, are issues that should not be taken to have been determined by the decision of the Board. It follows that the existence and fulfillment of any Haida duty on the part of the Crown in respect of the Project are matters in respect of which there has been no judicial pronouncement. For greater certainty, it is my view that the question of whether Parliament’s enactment of the NEB Act, over 20 years before the enactment of the Constitution Act and over 40 years before the decision in Haida Nation, could be said to constitute Crown conduct that is sufficient to trigger the Haida duty is not a matter that was decided by the Board. If the enactment of the NEB Act constitutes the impugned Crown conduct and that conduct occurred over 60 years before the Project application, one is presented with the logical impossibility that the Haida consultations in respect of the Project were required to have taken place prior to the enactment of that legislation.
[70] In the same vein, one would wonder whether it can realistically be suggested that in enacting of the NEB Act, ‒ over 20 years before the enactment of the Constitution Act and over 40 years before the Haida duty to consult was enunciated by the Supreme Court ‒ the federal government was attempting “to avoid its duty to consult” (see paragraph 62 of Carrier Sekani).
[71] In contrast to the enactment of the NEB Act in the 1950’s the Province of Alberta recently enacted the Responsible Energy Development Act, S.A. 2012, c. R – 17.3. Section 21 of that legislation specifically states that the Alberta Energy Regulator has no authority to make the Haida Determinations, seemingly indicating an intention on the part of that legislative body that such determinations must be made by the courts.
[72] At the hearing of this appeal, the Appellant acknowledged that the Crown Response Letter could have been regarded as a refusal by the Crown to engage in consultations and that an application for judicial review could have been brought with respect to that refusal.
[73] Once before a court, the Haida Determinations could be made in the context of the evidence and arguments presented by the parties and an appropriate remedy sought. The panoply of potential available judicial remedies was described by the Supreme Court at paragraph 37 of Carrier Sekani, as follows:
[37] The remedy for a breach of the duty to consult also varies with the situation. The Crown’s failure to consult can lead to a number of remedies ranging from injunctive relief against the threatening activity altogether, to damages, to an order to carry out consultation prior to proceeding further with the proposed government conduct: Haida Nation, at paras. 13-14.
[74] The scope of the remedial powers of a court or judicial review would also extend to declaratory relief such as that which was proposed by the Yukon Court of Appeal in Ross River Dena Council v. Government of Yukon, 2012 YKCA 14, 358 D.L.R. (4th) 100. In that case, the Court recognized an acknowledgment from Crown counsel that the legislature of the Yukon might wish to make legislative amendments to address the consultation issues under consideration and, accordingly, it suspended the declarations that it was otherwise prepared to make. Such flexible relief can generally be provided by the Courts in judicial review proceedings.
[75] Indeed in the excerpt from the Request for Consultation Letter (reproduced in paragraph 11 above), the Appellant itself acknowledged a number of limitations on the jurisdiction of the Board to address all of their concerns about the impact of the project on them. However, it is not obvious to me that the consequence of the absence of provisions in the NEB Act (enacted over 50 years ago) that would enable the Board to meaningfully remediate any established breach by the Crown of its Haida duty ought to be that Enbridge’s Project approval application must be held up indefinitely.
[76] An application for judicial review in relation to the existence and fulfillment of a Haida duty was heard by the Federal Court in Brokenhead Ojibway Nation v. Canada (Attorney General), 2009 FC 484, 345 F.T.R. 119 [Brokenhead].
[77] In that regard, the holding of Justice Barnes, at paragraph 37 of Brokenhead, is worthy of note:
[37] The Treaty One First Nations maintain that there must always be an overarching consultation regardless of the validity of the mitigation measures that emerge from a relevant regulatory review. This duty is said to exist notwithstanding the fact that Aboriginal communities have been given an unfettered opportunity to be heard. This assertion seems to me to represent an impoverished view of the consultation obligation because it would involve a repetitive and essentially pointless exercise. Except to the extent that Aboriginal concerns cannot be dealt with, the appropriate place to deal with project-related matters is before the [Board] and not in a collateral discussion with either the [Governor-in-Council] or some arguably relevant Ministry.
[78] In other words, achieving practical solutions to project-related problems by recourse to the mainstream regulatory jurisdiction of the Board is a worthy objective that should be pursued.
Conclusion [79] For the foregoing reasons, I conclude that there has been no delegation by the Crown to the Board, under the NEB Act or otherwise, of the power to undertake the fulfillment of any applicable Haida duty of the Crown in relation to the Project.
VI. DISPOSITION [80] For the foregoing reasons, I would dismiss the appeal with costs to Enbridge. As neither the Crown nor the Board asked for costs, none will be awarded in their favour.
“C. Michael Ryer”
J.A.
“I agree
Wyman W. Webb J.A.”
RENNIE J.A. (Dissenting Reasons)
I. Overview [81] A point of divergence arises between my col